Unethical ToS and similar documents

I am one of the rare exceptions who often actually takes a look at the contents of the ToS and related writings, before I sign up for a service. The result of this is, more often than not, that I choose not to sign-up… Such is the character of the typical ToS.

A particular annoyance is the common combination of claims that use of a service implies acceptance of the terms, that the terms are subject to regular change, and that it is the responsibility of the user to regularly re-visit/re-read the terms. While the first two, alone, may be acceptable, the result of combining them with the third is unconscionable—and, likely, a deliberate attempt to make sure that the users do not know what they agree too at any given time. Notably, it is not practically possible to keep up-to-date with all the services of today, re-reading the entire documents after each update is a disproportionate amount of work, and there will almost always be some window of unawareness after every change—even for those who do try to keep up (or else every single use would require re-reading the ToS).

With some over-simplification, we have two occurring cases:

1. The user has entered some kind of formal or semi-formal association, including having provided contact information or having a fix account which he logs into. In this case, it is very obviously the responsibility of the service provider to use these mechanisms to explicitly make the user aware of the changes. Doing so is cheap and easy—and since the same mechanisms are typically used to force various forms of advertising down the users’ throats, they are within what the provider must consider reasonable.

   Not doing so? That is based on the wish to not inform the user of changes to his disadvantage. Notably, I have repeatedly received on-paper messages from e.g. banks along the lines of “Our ToS have changed. If you do not consent please object within two weeks. The new ToS can be reviewed in our locales.”—where it would have cost nothing to just quote the changes in the letter…

2. The user is not formally registered, but e.g. an ordinary visitor of a website. In this case, the most reasonable interpretation is that the ToS simply do not apply, that they have not been brought to the users attention in a manner that is sufficiently obvious to be binding.

Between these, there are obviously various mixtures and variations. Most (not necessarily all) will be invalid for reasons deducible from the above.

Generally, deliberate attempts to make the users not read these documents are common. Consider e.g. the common practice of putting parts of the text in near unreadable all-caps, the use of fine-print or footnotes for vital information, or the absurd practice of putting a text that should fill a long HTML page in a minuscule and entirely unnecessary text area. This if the text can, at all, be found: Even today, it is not entirely unheard of that e.g. the ToS are so well hidden that the user has to deliberately search for them, should he wish to view the contents.

Among the many other evil tricks, we have the in-the-ToS clause that allows the service provider to abuse the users data in more or less anyway he sees fit—something which should always be solved by a separate, explicit query as to whether the user is in agreement. (Further, something that is usually sufficiently irrelevant to the service it self that a “no” should not have any effect on the users possibilities to use the service—in particular not, when he is actually paying for the service.) We have the “we may spam you” clause, the “we may irrevocably delete your contents or terminate you account on our whim” clause (as opposed to e.g. a “we may block your contents/account pending a clarification on our whim”), the “no matter what we do wrong, you have no rights to indemnification” clause, the “if someone hacks your account, you bear the full responsibility” clause, etc.

Some of these have some justification at least some of the time; however, the way they are formulated (and, typically, applied), the balance between legitimate interests is tipped far beyond what is conscionable and ethical. In fact, at least in Germany, it is relatively common that even the ToS of a major off-line business (a bank, a telephone provider, whatnot) are found to be in violation of the applicable laws—typically, in my impression, not through oversight, but through a deliberate attempt to trick the users into believing that they have less rights than they actually do have. I even recall one instance when Amazon tried to rule out my legal right to return a mis-order by pointing to, believe it or not, statements on their help pages… (Which, even had they conformed to the law on this point, would not have been legally binding in any way, form, or manner.)

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Website changes

Yesterday, I deployed a version of my website that uses a new generation system. Your visit to check for any bugs that may have been introduced is very welcome; in particular, if you have a non-Opera browser. (Unfortunately, there are still differences in standard conformance between various browsers—and for one individual to test them all…)

Previously, the XHTML code was generated directly from the private template language I use; now, an intermediary generation of XML has been added, which is later transformed to XHTML using XSLT (which now does most of the work). Apart from the general advantage of having a more “pipe-lined” processing, this solves a number of problems caused by the lack of context-awareness of the original shell scripts and has given me an excuse to refactor a few ugly solutions. Further, the new system will be far easier to extend and adapt, should the need arise.

(More background information can be found in my technical notes. Note, however, that this page describes a state before a number of extensions had been made—and, in particular, has not yet been updated for the major recent changes. This will change with the next deployment.)

What makes a blog reach the front page?

In my last post, I discussed how one of my own entries rather arbitrarily, and without my control, became a success. (By the current standards of this blog—there are many established blogs that would consider the same traffic a letdown.)

In a next step, this lead me to reflect on the disappointing quality of the blog entries published on wordpress.com’s homepage^e: While some are good, most are superficial, have no depth or insight, lack an edge, are not thought-provoking, … The posts that I really consider valuable, I have typically found buried in the tag listings.

What do these posts have that brings them to the homepage? I have no idea what goes on behind the scenes, but a few impressions of beneficial factors:

1. They are often noticeably longer than the typical post, sometimes approaching the length of a magazine article. However, they do not necessarily say more in the space used than many shorter posts.

2. They tend to be above average in language quality, measured in e.g. typos; however, are often written in a very bland and populistic style, not entirely unlike e.g. an airplane magazine.

3. The average number and quality of pictures is far above the overall average. Arguably, however, most pictures have no informational value and many have their only benefit in making the visual impression of the page more pleasing (occasionally, they fail even there). This is, again, reminiscent of how many magazines directed at the masses work.

4. Most have a picture that fits the homepage entry format well and is of unusually high quality—but which says nothing about the actual article.

5. Similarly, most have a catchy, but uninformative, title. (Typically, clicking on one of these entries is something I do in complete ignorance of what I will find on the other side. Notably, the homepage does not publish the excerpts that can be found in e.g. the tag listing.)

6. They often have content that, IMO, will appeal sufficiently to most readers that they are an adequate time killer when nothing else is available—however, they rarely have a great appeal to any individual group. Again, not dissimilar to an airplane magazine…

All in all: If an author could write for an airplane magazine, he might have a good shoot of getting to the homepage. But: How many of us would actually read, let alone pay for, an airplane magazine when something else is available? Do not judge a book by its cover, but by its content—and do not select a post based on how “polished” it is, but look at the actual ideas and insights present.

(Disclaimer: While I have read a few dozen homepage posts in the last two months, I cannot guarantee that I have a representative sample—or that WordPress will continue to make choices matching these criteria. Further, the above analysis is likely incomplete.)

Quality vs. success—illustrated by the preceding post

I have often made the observation that highly talented people, high-quality products, excellent ideas, whatnot, are not necessarily successful—while less talented people, lower-quality products, …, can be so to a high degree.

The explanations are many, some “worthy” (e.g. that hard work can make a considerable difference), many “unworthy” (e.g. better marketing, luck with timing, knowing the right people).

My Friday post provides an excellent example: I read an article series in a newspaper that I found offensive, threw together a counter-post without deliberation and planning, and probably spent less than half the time on the actual writing than I do on the average text of that size. In fact, the day after publishing, I spotted no less than five very obvious typos that I felt forced to correct after the fact. I often make errors even in published texts, but in this case my proof-reading cannot have deserved the name.

Still, my post took less than 24 hours to become the most visited on my two-months old blog. (Whether the most read is another question: Other articles may have accumulated a larger number of reads while on the home page.) Further, Saturday broke my daily-hits record by a full 50 %—two thirds of the hits landing on that one post.

How did this success (relative to earlier posts) come about? Simple: A link to my post showed up on one of the articles discussed (possibly through a trackback)—and a small portion of the newspaper’s visitors proceeded to visit me.

In effect, I did not see this traffic because I wrote a post that was more valuable or better written than my other posts—but because I accidentally rode on the “popularity coattails” of the newspaper.

(Similar stories are not unusual on WordPress. I have heard of a few cases where a blog got a months worth of traffic in a day, after a high-traffic site linked to it.)

Hypocritical media

I have already written about the Swedish media, its very hypocritical stance towards free speech, and its intellectually dishonest reporting. Today, I encountered an article series in DN, Sweden’s leading morning newspaper, that forces me to take up the question again:

While strictly filtering their own reporting through an overly politically-correct sieve, while writing with a clear gender-feministic bias, and while suppressing comments on their websites that are too deviating from the “correct” opinion, DN now launches at all out attack on the blogosphere and racism on the Internet.

Notably, this “racism” is often nothing but an irritation at the situation in Sweden, where a disproportionate number of crimes are committed by immigrants, where many immigrants live on Swedish welfare, and where many see a danger (whether real or not) that “the Swedish way” will go under. This is conceptually something different from racism and should be treated just like other political opinions: Fair evaluation, fair debate, and the right to free speech—not pre-conceived rejection, exclusion from the debate, and defamation. Even opinions that are, in a strict sense, racist are not automatically a cause to limit free speech—just as being a Creationist or Communist is not a reason to be forced to silence.

(Note that I am myself an immigrant, having lived in Germany for more than 12 years. My basic opinion on free migration is positive—and many of the views expressed e.g. on Fria Nyheter (cf. the above link) are incompatible with my own. The issue here is one of intellectual honesty and fairness, and the dangers of suppressing free speech and debate. This in particular as there are legitimate arguments both pro- and anti-immigration in Sweden’s case.)

Consider a few comments (from a few of the long articles, which are mostly more of the same):

Internet har blivit de främlingsfientliga gruppernas plattform. Bloggar, sociala medier och nyhetsartiklar svämmar över av rasistiska kommentarer.

(Internet has become the platform of the alien-hostile groups. Blogs, social media, and news articles [presumably referring to the comment functions of the traditional news papers] are flooded with racist comments.)

(http://www.dn.se/kultur-noje/nyheter/internet-uppsving-for-ultrahogern-1.1075039^e)

I have spent a very sizable part of my spare-time reading blogs in the last few weeks, and the statement is an exaggeration at best. As far as “racist” goes, it is down-right wrong: Most are opposed to the current rate of immigration or the behaviour of the immigrated population, but not racist. The same applies to my experiences of the Internet, in general, since 1994.

Nyhetssajter som DN.se är på inget sätt förskonade från rasistiska kommentarer. I allt större utsträckning tvingas DN.se stänga av kommentarsfunktionen eftersom de medverkande bryter mot lagen.

(News sites like DN.se are by no means protected from racist comments. To an increasingly higher degree, DN.se is forced to turn of the comment function, because the participants break the law.)

(Ibid.)

I have seen comments that were perfectly legal being deleted—including those that were merely critical of the news reporting, e.g. by mentioning biases shown by the journalist…

På DN.se gillar vi debatt – kärlek till det fria ordet är en förutsättning för att jobba på en plats där just det fria ordet är kärnan i verksamheten.

(At DN.se we like debate – love of the free word is a prerequisite to work in a place where the free word is the core of the business [occupation?].)

(http://www.dn.se/blogg/dnsebloggen/2010/04/09/sa-hanterar-dnse-problemet-med-rasistiska-kommentarer-6922^e)

At best hypocrisy, at worst an outrageous lie: DN does not practice what it preaches—free speech applies only to journalists and those who do not deviate too far in opinion. Note the next quote.

Läsarkommentarerna på DN.se ska ligga inom ramen för vår policy, exempelvis plockar vi bort inlägg som är rasistiska eller sexistiska.

(Reader’s comments on DN.se must be within the limits of our policy, for example we will remove opinions that are racist and sexist.)

(Ibid.)

Apart from this policy, by its nature, being arbitrary, this explicitly rules out racist and sexist opinions. Notably, the definitions of “racist” and “sexist” in Sweden (like in the US) typically go beyond what is justified. It is not uncommon that negative statements about women and foreigners are called sexist or racist in a blanket manner—even when they happen to be true, respectively the maker of the statement has reasonable grounds to believe that the statement is true. The Swedish attitude towards sexism is notably of the same kind that got Lawrence Summers^w thrown out of Harvard for stating established science.

Efter dödsmisshandeln av en 78-årig kvinna i Landskrona exploderade rasismen på nätet. Skitsnacket flödar, samtidigt görs så mycket information som möjligt tillgänglig för allmänheten – sann eller ej.

(After the man-slaughter of a 78 y.o. woman in Landskrona [apparently perpetrated by an immigrant over a parking disagreement] the racism on the net exploded. The bull shit [literally, “shit talk”] is flowing, at the same time as much information as possible is provided to the public – true or not.)

(http://www.dn.se/kultur-noje/nyheter/mobben-har-flyttat-till-natet-1.1074484^e)

I note that Swedish papers are rarely keen on limiting themselves to true information. Further, that they artificially (try to) limit the access to information. Further, that the omissions they make are often as bad as lies.

In the end, the relevant question to ask is “Why are these opinions voiced on blogs?”—with the, at least partial, answer “Because they are suppressed in conventional media.”. Worse, there is a fair chance that this suppression drives those with a limited negative view on foreigners, based on reason, in the arms of unreasonable movements, e.g. of the Neo-Nazi kind. (Which, I stress, also have a right to free speech—and should be met with arguments ad rem.)

Never listen to your customers

I just ran across an entry on another blog^e with a very dangerous message: Never listen to your customers.

The rationale for this very drastic statement: Customers will only be able to tell you what is wrong, not what is possible—and in order to be the best in the long term a more visionary and actively future-shaping approach is needed.

In this, the post is not entirely wrong; however, it is still highly naive. For one thing, listening to the feature wishes of the customers is not the same thing as listening to the needs of the customers. For another, following this advice would perpetuate many of the bad habits of today’s software makers (including those that are responsible for the third-rate software delivered by e.g. Microsoft). A likely incomplete list:

1. Neglecting bug-fixes and improvements of the existing features, in favour of adding new features.
2. Featuritis, where feature after feature is added—most of which will eventually not be used by the typical user, and many of which may even be hindrances. (This with a number of side-effects, including greater complexity and more bugs.)
3. A “pin the donkey” approach to features, where ten features are added and only one eventually sticks.
4. A thinking that makes marketing more important than quality, to the detriment of the customers.

This is particularly interesting with regard to the sometimes heard claim that open-source software would be lacking in innovation (and, in the rhetorical context, ipso facto be unworthy of attention): Open-source products are typically written by the users for the users, on the basis that if someone has an itch to scratch, he is given the opportunity to scratch it. If someone is hindered by a bug, he can fix it—he does not have to wait until some manager decides that the bug is worthy enough to be fixed. If he lacks a basic feature, he can add it. If he sees a room for innovation, he can innovate. Etc. (It should not be denied that this road is closed to many users because they, unlike the majority of earlier users, lack the programming skills; however, this does not mean that these products are unsuitable for the man on the street—as proved by e.g. Firefox.)

Notably, however, open source is by no means lacking in innovation—it just tends to eclectically add what has been found to work, be needed, and bring benefit to the users. As for true innovations, they have very often been made in a research context, an open-source context, or in a context that today would be considered open source. The “innovators” in the major software makers have very often just copied, modified, or extended an idea that was made by someone else years earlier.

I agree that innovation is necessary to move beyond the borders of the known. Innovation, however, should not be made at the cost of “due diligence” towards existing features. It should not be confused with implementing a dozen ideas and see what sticks. It does not equal success. In fact, the world is full of innovative companies that ultimately failed, because they lacked the marketing, resources, timing, or business prowess to succeed—and, arguably, the greatest benefit of innovation (from a business POV) is just that it allows for better marketing.

Not listening to the users can make for more commercially successful software—it does not make for better software.